A resource for updates to Currie & Rikhof, International & Transnational Criminal Law, 2d ed. (Toronto: Irwin, 2013), and a forum to discuss developments in the field.

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Chapter Updates

July 2011

22 July 2011

Here's a very interesting article from the UNODC about the 11th Asian Regional Partners Forum on Combating Environmental Crime (ARPEC), held in Bangkok recently. Makes me think that chapter 7 of the book, on "transnational crimes of international concern," might need a new section, maybe on the CITES treaty.

20 July 2011

A few cases worth noting, all at different stages but all involving the responsibility of state officials for international crimes.

The ICTY has announced the arrest of Goran Hadzic, who until now was the only person indicted by the tribunal who was still at large. Hadzic was wanted for war crimes and crimes against humanity, stemming from his time as the "President of the Government of the self-proclaimed “Serbian Autonomous District Slavonia, Baranja and Western Srijem” and the so-called 'Republic of Serbian Krajina' during the Yugoslav conflict. This is the second recent arrest that Serbia has made of an indicted fugitive, seemingly indicating a greater willingness to cooperate with the Tribunal -- which the EU had indicated was necessary for it to be eligible for membership.

In Washington, Human Rights Watch has released a 107-page report called "Getting Away With Torture: The Bush Administration and Mistreatment of Detainees." In it, HRW details what it refers to as "overwhelming evidence" that senior Bush administration officials are liable for torture and war crimes during the post-9/11 period, for authorizing various forms of mistreatment of persons detained as part of the "war on terror." This includes former President George W. Bush, former Vice-President Dick Cheney, former Defence Secretary Donald Rumsfeld, and former CIA Director George Tenet. The report also criticizes the Obama adminstration for doing little to ensure accountability, suggesting that its failure to investigate and prosecute these crimes is a breach of the UN Convention Against Torture.

Finally, here at home, Canada's Federal Court of Appeal recently released its decision in the case of Minister of Citizenship v. Ezokola. Ezokola was the second-in-command at the permananet mission of the Democratic Republic of the Congo to the United Nations from 2004 to 2008, after which he fled to Canada because of his disagreements with the government of Laurent Kabila. He and his family made refugee claims, but the immigration Panel they faced rejected the application on the grounds that there were serious reasons to believe Ezokola was complicit in crimes against humanity. On judicial review of that finding, the applications Judge overturned that finding on the basis that, while the government of the DRC had committed crimes against humanity, Ezokola could not be "complicit": "one cannot be an accomplice without having personally participated in the crimes alleged, personally conspired to commit them or personally facilitated their commission."

The Court of Appeal reversed this finding, holding that the Applications judge had used the wrong test for complicity. Personal participation, conspiracy or facilitation, wrote Justice Noel for a unanimous court of appeal, was not necessary; "in my view, a senior official may, by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes committed by this government demonstrate “personal and knowing participation” in these crimes and be complicit with the government in their commission." (para. 72)

The matter was sent back for review by a new Panel, because the original Panel had itself not applied the correct test for complicity.

Nothing startling here, but the armor of impunity continues to be chipped away.

06 July 2011

In the recently-released case of R. v. Thambaithurai, the British Columbia Court of Appeal upheld a 6-month prison sentence for the first person convicted of financing terrorism in Canada. The Court of Appeal's decision can be read here. The accused, who was represented by respected Vancouver criminal lawyer Richard Peck, pleaded guilty to a charge of terrorism financing under s. 83.03 of the Criminal Code, specifically that he "[made] available property or financial or other related services...knowing that, in whole or part, they will be used by or will benefit a terrorist group."

First, a bit of background. Canada is a party to the UN's International Convention for the Suppression of the Financing of Terrorism, which provides that states must criminalize the collection of funds where the individual intends or knows the funds will be used to support terrorism. Canada is also bound by UN Security Council Resolution 1373, which requires states similarly to criminalize terrorist financing and, in paragraph 2, to ensure that "such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts." The offences are implemented by ss. 83.02-83.04 of the Criminal Code, while s. s. 718.2(a)(v) makes terrorism an aggravating factor for sentencing purposes.

As the trial judge found, Thambaithurai had been raising funds in Vancouver for the Sri Lankan LTTE (the Tamil Tigers), which has been designated a terrorist group by the government of Canada. More specifically, Thambaithurai, who was a respected member of the Canadian Tamil community and had no criminal record, had raised between $2,000 and $3,000 for the World Tamil Movement (WTM), a charitable organization of which he was a member, and admitted that he knew that some of the money would be taken from the WTM by the LTTE once it reached Sri Lanka.

For the Court of Appeal, Neilson J.A. did not make any specific references to either the Convention or to Resolution 1373, but at issue was the way to balance the seriousness of terrorism offences generally with the fact that, as the Crown prosecutor had explicitly argued before the trial judge, Thambaithurai's offence put him at "the extreme low end of this continuum." In concluding that 6 months' incarceration was appropriate, the trial judge had taken a number of factors into account, including:

- terrorist financing was a serious offence

- Thambaithurai was otherwise of good character and had not used any coercive means in collecting the money, but also had not shown any remorse for his actions

- the amounts of money were low

- an appropriate sentence would deter people, like Thambaithurai, who were not "fanatical" terrorists but simply had sympathies for the work of a terrorist group

- a suspended sentence (which had been requested by the defence) would not sufficiently denounce Thambaithurai's actions and deter others from acting similarly

The Court of Appeal explicitly cited the framework for sentencing terrorist offences developed by the Ontario Court of Appeal in R. v. Khawaja (now going to the SCC), which bears repeating:

"the sentencing of terrorists requires particular regard to three critical factors: (1) the unique nature of terrorism-related offences and the special danger that these crimes pose to Canadian society; (2) the degree of continuing danger that the offender presents to society; and (3) the need for the sentence imposed to send a clear message to would-be terrorists that Canada is not a safe haven from which to pursue their subversive and violent ambitions. ..."

Justice Neilson concluded that while the sentencing judge did not have the Khawaja framework to guide him, he had accomplished its goals by imposing the sentence he did. Given the deference owed by an appeal court to a sentencing judge, there was no basis on which to overturn.

It's difficult to know how to feel about this decision. On the one hand, it is certainly important that terrorism supporters (and would-be supporters) be caught, denounced and deterred. Both levels of court were implicitly concerned that anything to do with terrorism not be given a sentence perceived to be a "slap on the wrist," given Parliament's clearly-expressed intention to impose harsher sentences for terrorist crimes than other, "ordinary" offences. This is consistent with the international community's priority on suppressing terrorism, of which sentencing is a small but important part.

On the other hand, the Crown here conceded (properly, it seems to me) that this is the lowest level of seriousness that a terrorist financing offence could have. Was incarceration necessary? The operative effect is that there will be no possibility of a suspended sentence for any future offences of this sort. No matter how de minimis the crime, 6 months' incarceration has been established as the benchmark. I'm not sure that the law needs to be this inflexible at the low end.